[Cite as State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., 2017-Ohio-1573.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Jackson Tube Service, Inc., 

 : 

 Relator, 

 : 

v. No. 16AP-351 

 : 

Industrial Commission of Ohio (REGULAR CALENDAR) 

and : 

Chad M. Thompson, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on April 27, 2017 

 

On Brief: Coolidge Wall Co., L.P.A., David C. Korte, 

Michelle D. Bach, and Joshua R. Lounsbury, for relator. 

Argued: Joshua R. Lounsbury.

On Brief: Michael DeWine, Attorney General, Eric J. 

Tarbox, and Cheryl J. Nester, for respondent Industrial 

Commission of Ohio. Argued: Eric J. Tarbox. 

On Brief: Hochman & Plunkett Co., L.P.A., Gary D. 

Plunkett, and Daniel J. O'Brien, for respondent Chad M. 

Thompson. Argued: Daniel J. O'Brien. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

TYACK, P.J. 

{¶ 1} Jackson Tube Service, Inc., filed this action in mandamus seeking to 

overturn the findings of the Industrial Commission of Ohio ("commission") that Jackson 

Tube Service was guilty of violating a specific safety requirement ("VSSR"). 
No. 16AP-351 2 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The parties stipulated 

the pertinent evidence and filed briefs. The magistrate then issued a magistrate's 

decision, appended hereto, which contains detailed findings of fact and conclusions of 

law. The magistrate's decision includes a recommendation that we deny the request for a 

writ. 

{¶ 3} Counsel for Jackson Tube Service has filed objections to the magistrate's 

decision. Counsel for Chad Thompson, the injured worker, has filed a memorandum in 

response. The case is now before the court for a full, independent review. 

{¶ 4} As indicated in the magistrate's decision, Chad Thompson was seriously 

injured when a flywheel he was trying to install fell on him. Jackson Tube Service 

admitted that Thompson had been required to work under a suspended load and 

therefore was in the danger which was supposed to be avoided by compliance with Ohio 

Adm.Code 4123:1-5-15(D), which reads: 

Employees shall not be required to work or pass under 

suspended loads, nor shall the crane operator be required to 

carry a suspended load over employees. 

{¶ 5} Jackson Tube Service has attempted to avoid the fact that it violated Ohio 

Adm.Code 4123:1-5-15(D) by asserting that the job could not be done without violating 

Ohio Adm.Code 4123:1-5-15(D). The staff hearing officer who heard the application for a 

VSSR was not convinced. Neither are we. 

{¶ 6} An employer should not be permitted to put an employee's life in danger 

simply because the employer cannot think of a safe way to do the job. Thompson thought 

that there were safety devices available from the manufacturer of the flywheel which could 

keep the flywheel from falling on a worker who was working on it. In an affidavit 

submitted after the hearing before the SHO, Jackson Tube Service asserts that it has 

talked to the manufacturer and the manufacturer has said that it does not offer the safety 

device described by Thompson. However, at paragraph 11 of the affidavit, Jackson Tube 

Service states the manufacturer suggested an alternative, albeit difficult, way to replace 

the flywheel without using the crane and sling. 

{¶ 7} Thus, it appears a revision of the repair system may have been possible. 

Regardless, the affidavit was submitted after the hearing before the SHO and the affiant 
No. 16AP-351 3 

was averring a conversation with a third party who did not provide sworn testimony. We 

note that the burden was upon Jackson Tube Service to prove that the repair could not 

have occurred without having an employee work under a heavy suspended load with no 

protection. Jackson Tube Service clearly failed to carry that burden of proof before the 

commission. 

{¶ 8} The objections to the magistrate's decision are overruled. The findings of 

fact and conclusions of law are adopted as supplemented by our comments above. The 

request for a writ of mandamus is denied. 

Objections overruled; writ denied. 

DORRIAN and LUPER SCHUSTER, JJ., concur. 

 

 
No. 16AP-351 4 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. : 

Jackson Tube Service, Inc., 

 : 

 Relator, 

 : 

v. No. 16AP-351 

 : 

Industrial Commission of Ohio (REGULAR CALENDAR) 

and : 

Chad M. Thompson, 

 : 

 Respondents. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on November 21, 2016

 

Coolidge Wall Co., L.P.A., David C. Korte, Michelle D. Bach,

and Joshua R. Lounsbury, for relator. 

Michael DeWine, Attorney General, Eric J. Tarbox, and 

Cheryl J. Nester, for respondent Industrial Commission of 

Ohio. 

Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, and 

Daniel J. O'Brien, for respondent Chad M. Thompson. 

 

IN MANDAMUS 

{¶ 9} Relator, Jackson Tube Service, Inc., has filed this original action requesting 

this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio 

("commission") to vacate its order finding a violation of a specific safety requirement 
No. 16AP-351 5 

("VSSR") as it related to the work-related injury of respondent Chad M. Thompson 

("claimant") and ordering the commission to find that claimant is not entitled to an 

additional award for VSSR. 

Findings of Fact: 

{¶ 10} 1. Claimant sustained a work-related injury on November 18, 2009, and his 

workers' compensation claim has been allowed for the following conditions: "bilateral 

femur fracture; right femoral shaft nonunion." 

{¶ 11} 2. Claimant was employed as an industrial electrician in the maintenance 

department of relator and was injured when, while in the process of installing a flywheel, 

the strap holding the flywheel broke and fell on top of claimant. 

{¶ 12} 3. Claimant filed an application for an additional award for VSSR and, 

following a hearing before a staff hearing officer ("SHO") on October 23, 2012, the 

commission determined that relator violated Ohio Adm.Code 4123:1-5-15(D), which 

provides: 

Employees shall not be required to work or pass under 

suspended loads, nor shall the crane operator be required to 

carry a suspended load over employees. 

{¶ 13} At the hearing, relator conceded that claimant had been required to work 

under a suspended load; however, relator argued there was no other way to install the 

flywheel except to require that claimant work under the suspended load. In rejecting 

relator's argument, the SHO relied on claimant's testimony, stating: 

[T]he Injured Worker himself responded succinctly that 

"There's a different way to do it if you look at the scope of the 

thing. It's my understanding that there is a fixture for that 

application that's offered by the manufacturer, and that was 

only noted after the accident when we had gone back and 

taken a look." The Injured Worker explained on page 84 of 

the transcript that the fixture is a device somewhat like safety 

jacks that they put under cars when they jack cars up. 

 

{¶ 14} 4. Relator filed a motion requesting a hearing based on an obvious mistake 

of fact or a clear mistake of law, stating: 

In finding a violation of a specific safety requirement in this 

case, SHO Crump relied on testimony that was not true. This 

constitutes an obvious mistake of fact. 
No. 16AP-351 6 

In rejecting Jackson Tube's "impossibility" defense, SHO 

Crump relied on Thompson's testimony, "There's a different 

way to do it if you look at the scope of the thing. It's my 

understanding that there is a fixture for that application 

that's offered by the manufacturer, and that was only noted 

after the accident when we had gone back and taken a look." 

SHO Crump stated in his Order, "The Injured Worker 

explained on page 84 of the transcript that the fixture is a 

device somewhat like safety jacks that they put under cars 

when they jack cars up." As noted above, however, this 

testimony is false. No such fixture exists. Therefore, SHO 

Crump's rejection of Jackson Tube's "impossibility" defense 

constitutes a clear mistake of law. 

(Emphasis sic.) 

{¶ 15} In support of its assertion that claimant's testimony that there was an 

alternate way to perform the task he was performing when he was injured, relator 

attached an affidavit from Ron Kimrey who was employed by relator as a maintenance 

manager. According to Kimrey's affidavit, he contacted an engineer for the manufacturer 

who verified that the manufacturer does not manufacture nor provide a device or 

mechanism to assist in removing or replacing the flywheel. Specifically, Kimrey averred: 

[Nine] Thermatool's engineer, Dan Lungo, has now verified 

that Thermatool does not manufacture or provide a device or 

mechanism to assist in removing or replacing the flywheel on 

the Cut Off Machine used at Jackson Tube. 

[Ten] Thermatool's engineer, Dan Lungo, has also now 

indicated that he is not aware of any device or mechanism 

designed to assist in removing or replacing the flywheel on 

the Cut Off Machine used at Jackson Tube, which challenges 

the statement regarding same that was made by Mr. 

Thompson at the VSSR hearing on October 23, 2012, and 

upon which SHO Crump specifically relied in finding that a 

VSSR had occurred. 

[Eleven] After receiving Mr. Crump's Order, I again 

contacted Thermatool's engineer, Dan Lungo, who suggested 

that the only way to replace the flywheel on the Cut Off 

Machine without using a crane and sling is to unbolt the 

machine from the floor and use heavy machinery to tilt the 

machine onto a 45 degree angle. 
No. 16AP-351 7 

[Twelve] In order to use the procedure suggested by Mr. 

Lungo, a device would have to be used to support the 

machine at a 45 degree angle. After researching for the 

availability of such a device, I can state that no such device 

exists. 

[Thirteen] Since Mr. Thompson's injury, Jackson Tube has 

constructed a device to potentially assist in the replacement 

of the flywheel, but the device is untested, did not exist at the 

time of Mr. Thompson's injury, and was not designed by 

engineers with experience in the field. Further, when using 

the new device, employees will still have to work under a 

suspended load. 

[Fourteen] Thermatool has now redesigned the Cut Off 

Machine so that the flywheel does not need to be removed 

when repairing the clutch on the redesigned model. 

{¶ 16} 5. In an order mailed March 9, 2013, relator's motion for rehearing was 

denied: 

It is hereby ordered that the Motion for Rehearing filed 

01/16/2013 be denied. The Employer has not submitted any 

new and relevant evidence nor shown that the order of 

10/23/2012 was based on an obvious mistake of fact or on a 

clear mistake of law. 

It is found that counsel for the Employer primarily argues 

that the order dated 10/23/2012 was based on an obvious 

mistake of fact and a clear mistake of law, in regard to the 

Staff Hearing Officer's reliance on testimony of the Injured 

Worker at hearing that an alternative way to support the 

flywheel was available or possible. While there was contrary 

evidence at hearing, an "obvious mistake or fact" is not 

shown when the Staff Hearing Officer relies on one item of 

evidence or testimony which is not consistent with evidence 

or testimony presented by the opposing party. 

As it is found that the requirements of Ohio Admin. Code 

4121-3-20(E)(1)(a) or (b) have not been met, the request for 

a VSSR rehearing must be denied. 

{¶ 17} 6. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 
No. 16AP-351 8 

{¶ 18} For the reasons that follow, it is this magistrate's decision that this court 

should deny relator's request for a writ of mandamus. 

{¶ 19} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course 

of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 20} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief sought 

and that the commission has a clear legal duty to provide such relief. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be 

given evidence are clearly within the discretion of the commission as fact finder. State ex 

rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

{¶ 21} In order to establish a VSSR, a claimant must prove that: (1) there exists an 

applicable and specific safety requirement in effect at the time of the injury; (2) the 

employer failed to comply with the requirements; and (3) the failure to comply was the 

proximate cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio 

St.2d 257 (1972). 

{¶ 22} The interpretation of a specific safety requirement is within the final 

jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193 

(1983). Because a VSSR is a penalty, however, it must be strictly construed, and all 

reasonable doubts concerning the interpretation of the safety standard are to be 

construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm., 

46 Ohio St.3d 170 (1989). The question of whether an injury was caused by an employer's 

failure to satisfy a specific safety requirement is a question of fact to be decided by the 
No. 16AP-351 9 

commission subject only to the abuse of discretion test. Trydle; State ex rel. A-F 

Industries v. Indus. Comm., 26 Ohio St.3d 136 (1986); State ex rel. Ish v. Indus. Comm., 

19 Ohio St.3d 28 (1985). 

{¶ 23} As noted in the findings of fact, relator essentially conceded that claimant 

had been required to work under a suspended load. Relator asserted that, pursuant to 

State ex rel. Harris v. Indus. Comm., 12 Ohio St.3d 152 (1984), an employer should not be 

liable for a VSSR where compliance with the specific safety requirement is impossible. 

Relator argues that its evidence conclusively proved there was no way to avoid placing 

claimant under the suspended load. 

{¶ 24} At the hearing before the SHO, claimant testified that it was his 

understanding there was a fixture offered by the manufacturer which would help support 

the flywheel while it was being reinstalled. At the hearing, relator did not offer any 

evidence contrary to claimant's testimony. It was not until relator filed its motion for 

rehearing that relator asserted that the manufacturer did not have a fixture such as that 

described by claimant. Relator has not asserted that claimant intentionally presented 

false testimony, only that his testimony was inaccurate. In an effort to demonstrate that 

claimant's testimony was inaccurate, relator has submitted an affidavit from its own 

employee averring that he spoke with an engineer at the manufacturer who informed him 

there was no such fixture. The reality is that the evidence relator now presents is 

qualitatively no better than the evidence presented by claimant and, contrary to relator's 

argument, the affidavit from its own employee does not conclusively prove that it was 

impossible to not require claimant to have been working under a suspended load. 

{¶ 25} Based on the foregoing, it is this magistrate's decision that relator has not 

demonstrated that the commission abused its discretion when it determined that relator 

failed to establish that there was a clear mistake of fact or law when it determined that 

claimant was entitled to an additional award for VSSR, and this court should deny 

relator's request for a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 
No. 16AP-351 10 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).